Category Archives: International Court of Justice

by Harry Roque and Romel Regalado Bagares, counsel for the Malaya Lolas

Why is Japan settling the Comfort Women issue only with South Korea and not with the Philippines or any other country whose citizens fell victim to the rapacious Japanese Imperial Army?

Are Filipinas raped and ravaged by the Japanese Imperial Army during World War II any less human than their South Korean counterparts?

And what is our government doing about the case of the Filipino Comfort Women whose claims against Japan have remained pending?

We raise these questions in the wake of recent reports that the Japanese and South Korean governments have finally reached an agreement to settle the 70-year old issue of the South Korean comfort women – or, in the case of the latter, girls and women forced to have sex with Japanese soldiers from the 1930s until the end of World War WII.

According to the agreement the Japanese government will offer a one-time final apology and to pay 1 billion yen ($8.3m) to provide care for victims through a foundation.

While we would like to see details of this agreement show an official acknowledgment of responsibility by Japan – because precisely, the previous apologies issued by Japan do not appear to be on behalf of the State but were cast as if there was no official policy implemented to forcefully conscript Asian women as sex slaves – news of this agreement only makes the insult against Filipinas who suffered the same fate sharper and deeper.

It also underlines the Aquino government’s continuing refusal to abide by its obligation under international law to provide an effective remedy against its own citizens who had been brutalized by the Japanese Imperial Army during World War II.

The Filipino Comfort Women are dying one by one. Each day that they are ignored by their own government, any hope of official acknowledgment and reparations grows dimmer as the shadows of old age and mortality cast a dark pall on their faces.

They should not be used as pawns by states in the geopolitical controversies of the day, as we fear is happening in regard to the Filipino comfort women. What we mean is that victims of horrendous human rights violations should not be used by our government as a leverage in its talk with Japan for support against China over the West Philippine Sea controversy.

Today, we hear of reports of more official Japanese government aid to the Philippines in the form of patrol boats to the Philippine Coast Guard and soft loans worth hundreds of millions of dollars for various infrastructure projects.

But these official aid initiatives will not erase Japanese official responsibility over the sexual slavery its own soldiers have subjected many Filipinas when they invaded the Philippines 70 years ago.

Background to the Malaya Lolas case

In 2004, the Center for International Law (Centerlaw) filed a petition in behalf of 70 plus members of the Malaya Lolas group, who survived the Mapanique, Tarlac siege by the Japanese Imperial Army during World War II. In the petition, the Malaya Lolas charged that they were victims of systematic rape and sexual slavery committed by the Japanese, and they asked the High Court to compel the Philippine government to espouse their claims against Japan. On April 28, 2010, the Philippine Supreme Court dismissed the petition.
The Supreme Court’s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism, it appears that these stolen passages were also twisted to support the court’s erroneous conclusion that the Filipina comfort women of World War II have no further legal remedies.

A Motion for Reconsideration and a Supplemental Motion for Reconsideration were subsequently filed by the Centerlaw on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court’s ruling, penned by Justice Mariano Del Castillo, “made it appear that these sources support the assailed judgment’s arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition’s claims.”

On March 27, 2013, Centerlaw filed a manifestation asking the Supreme Court (SC) to consider a 2011 decision by the Constitutional Court of Korea on the issue of Korean Comfort Women in resolving the controversial Malaya Lolas case. This was noted by the Court in a resolution issued on April 11, 2013.

Centerlaw also filed a Motion for Leave to File Petition for Intervention on behalf of the European Commission on Human Rights (ECCHR). The Motion was denied by the Supreme Court stating that intervention can no longer be had once the case has been submitted for resolution.

In August 5, 2014, the Supreme Court denied the Motion for Reconsideration and Supplemental Motion for Reconsideration filed by Centerlaw on behalf of the Malaya Lolas.

More than 60 years after its founding, the Universal Declaration of Human Rights (UDHR) remains a document relevant to contemporary issues and problems; Perhaps, its genius lies in the fact that it is a declaration that embodies a broad sweep of the world’s varied traditions, philosophies and perspectives, so that no single bloc can claim ownership over its “sacred truths,” to use a theological term in this highly secularized era of ours.

Perhaps too, it can well be said that their commonality lies in the sureness of their being profoundly human. And while critics may rightly point to how its more influential interpreters often offer to the world a lopsided bent towards the individualistic view of human rights, as a founding document, its relevance is measured by the willingness of its adherents to a reasoned dialogue about the differences and commonalities that characterize various interpretive traditions.

Of course, ontological issues cannot be summarily set swept aside. (Indeed, the Western tradition presses on the primacy of the individual as the supreme if not the only ontological truth there is).

But that precisely is the role of reasoned dialogue: to show which interpretative strategy is better able to explain the problems and the solutions to them. Hence how can we better account for the so-called collective/group rights other than a resort to the positivist predilection for the description of the what is (and its undisguised disdain for the teleological)?

This discussion is also crucial to an understanding of the rise of non-state actors in international law. Is the sociological account (as for example, the process view of Higgins) enough to convince us that original objective legal personality must now be seen as something that transcends the state.

Indeed, much of theorizing on the state has been influenced by a philosophical movement that either exalts the state as the only political reality or treats it as a legal fiction of the social contract between among purportedly free and autonomous individuals.

International legal theory takes it for granted that there is an opposition between the individual and the state, to the exclusion of all other non-state actors. International legal theory thus confronts us with a nominalism of the state as the only true sovereign and a nominalism of individuals as the basic elements of the international legal order.

Hence, international law theorists resort to an unsatisfactory strategy of (1) devising external limits to the powers of the state or (2) stressing the primacy of the individual over all else to curtail abuse of state power. This nominalistic approach has so dominated international law that for the most part, the state has been seen as the only source of legal standing and legal personality in the international arena.

The first strategy cannot fully account for the state’s public and private duties while the second strategy fails to do justice to the proper exercise of the same duties as well as to the existence of other non-state entities, such as civil society groups, churches and multinational corporations.

This in fact leads to an irresolvable conflict between the state and the individual, inasmuch as it fails to properly recognize their respective competencies, as well as the existence of other spheres in society.

Neither of the two strategies can properly account for the rise of non-state actors in international legal discourse, other than resorting to notions of democratic participation and legitimacy that in the first place do not provide a convincing ontological justification for why non-state actors should be granted the right to democratic participation and the power to ascribe legitimacy to international legal processes.

As Jeremy Sarkin has persuasively argued, there is a “clear position from 1948,” when the UNDHR was adopted, that the instrument demands that “every individual and every organ of society … promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.”

From this standpoint, although “companies may not be in the habit of referring to themselves as ‘organs of society,’ they are a fundamental part of society. As such, they have a moral and social obligation to respect the universal rights enshrined in the Declaration.”[1]

Yet his observation also begs to ask the question thus: is this merely a matter of opiniojuris and state practice, or something that requires a radical and fundamental ontological commitment? Of course, we all know that even the positivist position is anchored on an unstated ontological commitment, that is, one that thinks lightly of ontology, if at all.

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On the occasion of International Human Rights Day, Dec. 10, 2015

[1]Jeremy Sarkin, The Coming of Age of Claims for Reparations for Human Rights Violations in the South, 1 SUR INT’L J OF HUM. RIGHTS 67, 69-70 (2004)

Mary Jane Veloso is a Filipina who was allegedly conscripted by an international syndicate to smuggle drugs into Indonesia as a “drug mule.” She was arrested at the airport and subsequently tried and found guilty by an Indonesia court for drug trafficking. She was sentenced to death. The 72-hour countdown to her execution is well on its way, and will end when she faces a firing squad tomorrow, Tuesday, at 5 pm. A second, last-ditch appeal filed by lawyers on her behalf has just been denied.

With the denial of this second appeal, we at the Center for International Law believe it is now possible for the Philippines to consider an international remedy available to it. In fact, there is still time for the Philippines to take Indonesia to the International Court of Justice on the capital punishment case, following precedents in the La Grand (Gemany v. US, 2001) and Avena (Mexico v. US 2004) cases. The Philippines can ask the World Court for a provisional order to stay the execution, as Germany did in La Grand just hours before the scheduled execution in Arizona, which by the way, was granted by the ICJ. We have got nothing to lose by exploring this option. This should not be taken as mutually exclusive of diplomatic avenues.

I was interviewed on this issue this afternoon by CNN Philippines reporter David Yu Santos. And that is exactly what I pointed out to him. But the question is, will the Philippine government take up this option?

The recent incident at the Scarborough shoal is no doubt the most brazen move thus far by the region’s certified Biggest Bully – China – in the escalating history of its altercation with the Philippines over territory.

From reports, it appears that the Philippine Navy’s BRP Gregorio Del Pilar had discovered eight Chinese fishing vessels poaching large quantities of endangered marine species, including live sharks, at the shoal. The resulting standoff – and our seeming inability to act decisively on a critical national security concern –further showed the vulnerabilities of the Philippines in a dispute over territory with an emergent world economic and military power.

But there are two ways of looking at the territorial dispute, which I will call the “thick” and the “thin” approaches. Our new baselines law, Republic Act 9522, classifies Scarborough shoal as a regime of islands under Art. 121 of the Law of the Sea Convention (LOSC). Under LOSC, a regime of islands has its own territorial sea, Exclusive Economic Zone (EEZ) and Continental Shelf.

Obviously, RA 9522 assumes that the shoal is part of Philippine territory in the fullest sense of the term. From that perspective, the reckoning point therefore is the shoal as an island grafted into Philippine territory.

It is what I call the thick approach, precisely because the claim to be made from it is full sovereignty as understood in the national territory clause of the Constitution. Since it is a regime of islands, a case can well be made that what the Chinese fishing vessels did was violate its territorial sea, given the facts available to us. Given the shoal’s classification under RA 9522, it would appear that the Chinese had violated its territorial sea, which extends from its coast up to a distance of 12 nautical miles.

The thin approach is what the Department of Foreign Affairs (DFA) has been saying all this time: that the Chinese violated our EEZ, reckoned from the base points off the coast of Zambales, as from those points, the shoal, which is about 137 nautical miles away from Palauig town in the province, no doubt falls within the said maritime regime. This approach is so-called, because under the EEZ, the Philippines has “sovereign rights” to the marine resources found in the area, to the exclusion of all the others.

The regime of sovereign rights is not the same as full sovereignty. It is limited only to the economic exploitation of resources found in the shoal, subject to certain conditions, and cannot be equated with the full exercise of sovereignty control of every piece and bit of territory there in the concept of an owner. It is otherwise known as “protective jurisdiction.”

But either way – thick or thin – we may now have a way to take the Chinese to compulsory arbitration with a final and binding judgment, which they have not been keen on doing.

The thin approach does not even require the Philippines to assert that the shoal is a regime of islands. The shoal may well be no more than rocks or coral reefs but even China recognizes that the area falls within the Philippine EEZ, except that they maintain that the Philippine claim to sovereign rights falls in the face of China’s mainly historic title to the shoal (which claims are highly doubtful, from the point of view of contemporary international law, which generally dismisses historic title as ineffective).

What the DFA doesn’t seem to realize, Prof. Harry Roque notes, is that the issues surrounding the shoal are different from those in the Spratlys.

Unlike issues involving the exercise of sovereign rights, which are subject to the compulsory jurisdiction of the International Tribunal on the Law of the Sea (ITLOS), conflicting claims to both maritime and land territory – as what obtains in the Spratlys – will require the consent of China to litigate.

“The point is,” says Prof. Roque, “with the incursion of China in an undisputed maritime area under the sovereign right of the Philippines, we could avail of mandatory and compulsory jurisdiction of the UN’s ITLOS, which we could not otherwise resort to in the case of the Spratlys.”

The general principle in the LOSC is that any dispute over the interpretation or application of a provision of the treaty is subject to the system of compulsory binding dispute settlement. Thus, by becoming a party to it, State Parties consent to disputes being referred to adjudication or arbitration.

Not many people know that China is also party to the Law of the Sea Convention, except that on August 25, 2006, it has invoked the so-called art. 298 exception, which allows it to opt out of compulsory arbitration in cases of disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction as well as sea boundary delimitations, or those involving historic bays or titles.

However, China, under this declaration, cannot say that by virtue of the art. 298 exception, it cannot be dragged into an arbitration because the events at Scarborough shoal concerns a dispute on law enforcement activities in regard to the exercise of sovereign rights. This is because it has already conceded that the shoal falls within the Philippine EEZ and is well beyond its own EEZ.

Under art. 297 (3) of the LOSC, it is the coastal state, in this case, the Philippines, which has the option “ to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.” That right does not belong to the offending state, China.

Indeed, in its declaration on June 7, 1996 – the date it ratified the LOSC – China announced that in accordance with the Law of the Sea, “the People’s Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.” The shoal is already beyond the scope of this declaration because it has already conceded that it lies within our EEZ.

According to Prof. Roque, this may well be our strongest suit, since the issue involved is cut-and-dried: did China, which has accepted the shoal in question as part of the Philippine EEZ, violate the Philippines’ sovereign rights over the waters surrounding the shoal?

Meanwhile, the “thick” approach — which is also favored by some Filipino Law of the Sea experts like my law school contemporary, Dr. Lowell Bautista, a research fellow at the Australian Centre for Ocean Resources and Security — is anchored on the classification of the shoal as a regime of islands. The Philippines may take China to a compulsory arbitration with the ITLOS under Art. 288 of the LOSC on a question of interpretation: given the physical configuration of the shoal, is it in fact an island?

The answer to the question will open the door for further clarification on which rights the Philippines would be entitled to claim over the area. One advantage to this approach is that even the Chinese themselves consider it an island, as they in fact, call it the Huangyan Island. So they are already bound by that characterization, and would not be able to effectively dispute an affirmative answer to the question by the international tribunal.

Note that resorting to the thin approach does not necessarily mean waiving our claims to the shoal as an island squarely belonging to the Philippines as its owner. The two approaches are not mutually exclusive.

In either case, we can immediately sue China before the ITLOS, with the added incentive that the international tribunal has the power to issue provisional remedies, such as prohibiting any of the parties from doing something that would disturb the status quo while the case is being heard.

But the obvious limitation to the thick approach is that resolving the question is only the first step; it does not really address the question of ownership of the island. For that, we will need more than the Law of the Sea; following the ruling of arbitrator Mr. Max Huber in the landmark Las Palmas arbitration, we will have to resort to general international law requirements for establishing ownership, in particular the various indicia of “effective occupation”, such as enforcement of fishery laws, customs and taxation management, attachment to local government control and the like.

Of course, the next question is, given the bullying tactics of China, how do we establish effective occupation over the shoal – is the P-Noy administration up to the challenge? Or is it even willing to do what past administrations have failed to do: sue China before the ITLOS on even just a question of sovereign rights over the shoal?

*(4/15/12)the author is Executive Director of the Center for International Law, an NGO dedicated to the promotion of the Rule of Law in the Philippines and Asia through binding international legal norms, and a professorial lecturer in public and private international law at the Lyceum Philippines University College of Law.

“For values to change,” Gerald Gahima, the chief prosecutor for the Republic of Rwanda once told New Yorker correspondent Philip Gourevitch in the aftermath of a genocide that killed 800,000 people within a short period of a hundred days, “there has to be an acknowledgement of guilt, a genuine desire for atonement, a willingness to make amends, the humility to accept your mistakes and seek forgiveness. But everyone says it’s not us, it’s our brothers, our sisters. At the end of the day, no one has done wrong. In a situation where there has been gross injustice and nobody is willing to seek forgiveness, how can values change?”

Gourevitch records this conversation in his heart-rending book We Wish to Inform You that Tomorrow We Will Be Killed With Our Families: Stories From Rwanda (1998).

Meanwhile, Michael Ignatieff wrote in his 1997 book The Warrior’s Honor: Ethnic War and the Modern Conscience these pained lines – “What does it mean for a nation to come to terms with its past? Do nations have psyches the way individuals do? Can a nation’s past make a people ill as we know repressed memories sometimes makes individuals ill? Conversely, can a nation or contending parts of it be reconciled to its past as individuals can, by replacing myth with fact and lies with truth? Can nations ‘come awake’ from the nightmare of their past, as Joyce believed an individual could?”

Ignatieff, quoting the Irish writer James Joyce as he reflects on the horrors he had witnessed in Central Europe in the genocide of the 1990s as a journalist, speaks of the “nightmare from which we are all trying to awake” – the deep wounds inflicted by a history of humanity’s inhumanity to its very own that, as it were, continue to fester, that refuse to close, that do not heal. Indeed, what does it mean for a nation to come to terms with its own past? (At the time, Ignatieff was a correspondent for the New Yorker; these days, he is Liberal Party member of the Canadian Parliament).

The two writers’ words come to mind when I think of the sad and arduous journey of the Malaya Lolas, who are among the hundreds of Filipinas – or the so-called “Comfort Women” –forcibly conscripted as sex slaves by the Japanese Imperial Army during World War II.

Made victims twice over by a plagiarized and twisted ruling of the Philippine Supreme Court dismissing their demand for redress in the controversial case of Vinuya v. Executive Secretary, they very recently hogged the headlines once again following a 38-10 vote by the House Committee on Justice, which found the majority opinion’s reporting magistrate or ponente in the said case, Associate Justice Mariano C. Del Castillo, answerable in an impeachment proceeding for betrayal of public trust.

As my co-counsel in the case, Prof. Harry Roque, notes, the impeachment proceeding against Justice Del Castillo and the Malaya Lolas’s pending motion for reconsideration before the Supreme Court, “are the last remaining legal attempts to obtain justice for these victims.”

When we filed the case in 2004, the Malaya Lolas numbered around 70. Today, there are fewer and fewer of them. In their younger days, they suffered unspeakable terrors and horrors of the body and soul; today they are in the twilight of their years – many of their fellow victims and survivors have in fact, perished without seeing the coming of dawn when justice is theirs. They continue to suffer because their own government has refused, in the last 60 years or so, to lift a finger, despite a clear mandate under international law as well as the dictates of human conscience, to take up their cause.

Worse, it took our Supreme Court nearly six years to rule on their claim, and when it did so, its reporting magistrate had to resort to plagiarism and misrepresentation to justify the High Court’s decision to deny them justice, saying that alas, while indeed their horrendous suffering is undeniable, no legal remedy is available to them.

Ironically, the South Korean Supreme Court – using the very same arguments we had deployed in Vinuya – would subsequently rule as unconstitutional the South Korean government’s refusal to take up the case of their own Comfort Women against Japan.

This is what the “values” that Rwanda’s Chief Prosecutor speaks of are all about: how much importance we place on the vicissitudes of historical memory upon the progress of our national life; the kind of public, and yes, official discourse, we make in regard to historical injustices committed against our people , and by logical extension, against the idea of the “nation” – what Ignatieff calls “a vast reckoning between generations.”

For the historian counsels us that such a reckoning only happens when a “publicly sponsored discourse gives it permission to happen.”

But the continuing effect of the Philippine government’s refusal to adopt the claims of Filipino Comfort Women is to condone and excuse the perpetration of rape and sexual slavery as crimes against humanity; inevitably to relegate, without resolution, these crimes to the annals of history; and, ultimately to condemn through governmental indifference, ignorance, and deceit, the Filipina Comfort Women, to oblivion.

This is how we as a nation must come to terms with our past – not by ignoring or erasing the Comfort Women’s painful existence from national memory but by fully acknowledging the suffering and shame they have been subjected to all these years, and above all, by fighting for justice long denied them.

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This essay first appeared in my weekly column for the Iloilo City-based The News Today.

The International Court of Justice recently promulgated a judgment which calls into question both the relevance and function of international law. Unwittingly, it declared that Nazi Germany is entitled to impunity for acts of forced labor that it committed during World War II.

In its February 3, 2012 decision in the case of Germany vs. Italy, the court ruled that the principle of sovereign immunity from suits is a customary norm of international law that cannot be infringed unless waived by the state. This immunity subsists even if the claim against it is for violation of a peremptory norm, referred to as “jus cogens” in international law. It also ruled that state assets are also immune from execution

The case arose because of a series of Italian domestic court decisions awarding civil damages against Germany for forced labor committed during World War II. While Germany has acknowledged that it committed grave breaches of international humanitarian law during the war, it nonetheless insists that claims against it for damages should be brought pursuant to its domestic law authorizing payment of compensation to individuals for these breaches and before German courts. Unfortunately, German courts barred compensation for forced labor for individuals with the status of a Prisoner of War. This is because the Germany insists that under the Geneva Conventions, POWs may be compelled to work by the detaining power.

In a case involving Luigi Ferrini who claimed to have been forcibly deported from Italy to Germany and made to work in a munitions factory, the Italian court ruled that Germany may not invoke state immunity for the commission of an international crime which at the same time, is covered by a jus cogens prohibition. The Court then awarded Ferrini damages and sought to enforce its decision against a real property owned by Germany in Italy. Hence, Germany’s resort to the ICJ.

The ICJ upheld Germany’s claim of immunity by ruling that under customary international law, the rule remains that a state is absolutely immune from suits for acts committed by its military troops in the territory of the forum. Furthermore, it stressed that under customary law, a violation of a jus cogens norm, even if acknowledged, as it was by Germany, cannot result in waiver of state immunity. In both points, the court enumerated a long list of state practice in the form of legislation and court decisions indicating that other than for Italian and Greek judicial decisions, the principle of state immunity as derived from the principle of sovereign equality of states remains to be firmly rooted in international law.

In ruling in the manner that it did, the ICJ applied an already disregarded notion that international law is only about the application of legal rules. In fact, bulk of the Court’s opinion was devoted to an examination of what the law is, assuming perhaps that what is may be divorced from why it is law and what it seeks to accomplish. International law is law only because states accept it as such. While states may have varying reasons why they acknowledge it to be law, the fact remains that like all laws, international law forms part of normative system. It prescribes conduct deemed beneficial to all of humanity and prohibits conducts that are otherwise.

This means that in the application of rules, the Court should have considered what is more beneficial to humanity: the cold application of the principle of sovereign immunity or the primacy of protecting civilian and POWS in times of armed conflict. While it is true that sovereign equality of states is a foundational principle of the law, the same is true also of the principle that that human rights have also ceased to be purely domestic issue.

The fact that the ICJ gave primacy to the principle of sovereign immunity from suits ignores why these rules exist in the first place; that is, to protect the interests of individuals and not the interest of an artificial being that is a state. As some have noted, international law protects for instance, the environment—not because the ocean or the air should be protected as such. We do so ultimately because human beings require clean water and air.

True, the Court expressly said that its ruling does not affect the liability of state agents when they themselves commit egregious acts. But why should there be a distinction? Precisely because a state can only act only though its agent, there should be no distinction hence between suits against the state itself and against its agents.

The Court also engaged in face-saving when it said that its decision is without prejudice to the liability of the German state for the commission of an internationally wrongful act. But what use is this when victims are bereft of a remedy under domestic law? Who will authorize the award of compensation to the victims when current state practice still deny individuals a standing to bring claims under international law? Certainly, similar claims to that of Ferrini’s were rejected by the European Court of Human Rights on jurisdictional grounds.

There is clearly more merit in the lone dissenting opinion written by a former President of the Inter-American Court of Human Rights Judge Antonio Trindande: “The Court’s decision … seems more open and receptive to the sensitivities of States than to the victimized human beings, subjected to deportation and sent to forced labor.”